Inside the life of a reserved summary judgment

Starting at para. 269 of the decision, the judge candidly describes the disproportionate time required to make rulings on complex summary judgment motions. In a nutshell, he takes aim at one area of judicial allocation, judgment writing time. He says the internal scheduling protocols should be updated to reflect the time needed to deal with summary judgments, which may take up little hearing time but deal with issues as complex as many commercial trials.

In the concluding paragraph, Justice Brown writes, “

If we are to restore the health of Ontario’s ailing civil litigation system, as judges we must not only call on those who appear before us to change their litigation culture, we also must look at our own internal scheduling culture and change it to meet the realities of our times.”

In a paper delivered at a September 12, 2012, meeting at the Ontario Bar Association, Justice Brown had disagreed with comments this writer made to the Canadian Lawyer in a August, 2012, article about the need to allocate judicial resources to meet higher demand for summary judgment motions. In fairness, Justice Brown did not, as I did, propose a separate motion court for summary judgments, separate from procedural motions. But his words are timely and represent an awakening to the need for court modernization.

Judge Brown deserves our praise for speaking candidly about the role of judicial resource administration in problems we face in the justice system. We in the practicing Bar can only encourage more transparency from the judiciary. Judges blaming lawyers will never replace cleaning out the stables. This author, in any event, will offer thanks to him for encouraging the debate. This time, you met me half way.

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One reason why the courts are clogged is that pleadings don’t mean what they used to mean. One can make almost any allegation in a pleading, whether or not one thinks that there’s any likelihood that it has a reasonable chance of being proved, and, likewise, one is free to deny allegations which one knows are true and so force the other side to prove them, and there seem to be no consequences – one can’t even cross-examine on the basis of a contradiction between the allegation and the evidence, since everyone knows that the pleading is not all based on what the client told his lawyer. The result is that a case which should last a few hours will often last several days. The rules regarding pleadings should be amended to provide that pleadings should be based on the litigant’s case (there will obviously have to be exceptions to cover the case where the litigant is not sure is has reasonable suspicions) and there should be real consequences – cost consequences and others – for inserting unreasonable allegations and making tactical denials. Also, a the judge or master at the pre-trial conference should be empowered to strike out allegations or denials which should not have been made.
Milton Verskin